Covidien Hernia Mesh Lawsuits Being Prepared For Bellwether Trials in MDL

Parties involved in Covidien hernia mesh lawsuits being pursued throughout the federal court system have agreed to a plan for sharing and examining remnants of failed implants, which may provide crucial evidence in early bellwether trials that will be scheduled to help gauge how juries may respond to allegations that the products were defectively designed.

Covidien currently faces nearly 1,500 product liability lawsuits in the federal court system, as well as hundreds of additional claims pending in Massachusetts state court, each raising similar allegations that painful and debilitating hernia mesh complications were caused be a defective design used with certain polypropylene implants sold in recent years, including Covidien Parietex, Covidien Symbotex and others.

Given common questions of fact and law raised in the complaints, the federal litigation was centralized for pretrial proceedings in June 2022, before U.S. District Judge Patti B. Saris in the District of Massachusetts, as part of a Covidien mesh MDL (multidistrict litigation). Since then, the parties have been engaged in discovery and are preparing to select a small group of representative claims for early trial dates, which will involve evidence and testimony that will likely be repeated throughout the claims.

As part of those discovery proceedings, U.S. Magistrate Judge M. Page Kelley issued a case management order (PDF) on September 24, announcing an agreement between plaintiffs’ and defendants’ attorneys on protocols for sharing key pathological evidence pertinent to Covidien hernia mesh lawsuits.

These pathology materials include remnants of allegedly failed Covidien mesh removed from plaintiffs’ bodies, as well as other tissues that may have been impacted by their presence. The materials are key components of the evidence plaintiffs will need to use to prove their Covidien hernia mesh injuries, and to back up claims that the implants were defectively designed.

This evidence is currently in the hands of healthcare providers on behalf of plaintiffs, and these protocols will dictate how each side will have access to that evidence and what they can do with it.

“It is the intention of the Parties that all Material that has not previously been analyzed, tested, or made available to both parties, be preserved in a manner that permits the Parties equal access to and analysis of the Material,” the order states. “With one exception, the Parties will not interfere with or circumvent the analysis and preservation of Materials by the Facilities to which any of Plaintiffs’ treating physicians have sent or will send the Materials in the usual course of business. The exception is where, in the usual course of business, the Facility would destroy the Materials.”

The order also calls on the parties to halt any current testing and analysis, and to come together to decide what should be done with tests and analyses that have already been conducted. If they are unable to reach an agreement, the Court indicates that it will step in to decide.

This evidence is likely to play a significant role in which cases are selected for eventual early Covidien mesh bellwether trials, which are unlikely to begin before the end of 2025 at the earliest.

While the outcomes of the Covidien hernia mesh bellwether trials will not be binding on other plaintiffs, they may help determine the average hernia mesh lawsuit payouts that Covidien would be required to pay if each case goes to trial nationwide.

If the parties fail to negotiate hernia mesh settlements or another resolution for claims during the MDL proceedings, Judge Saris may later remand each individual case to the U.S. District Court where it originated for a future trial date.